Boundary Law And Landowner Disputes In Texas
BOUNDARY LAWANDLANDOWNER DISPUTESIN TEXAS
Boundary Law and Landowner DisputesTABLE OF CONTENTSI.TRESPASS TO TRY TITLEA. History, Purpose And JurisdictionB. Parties And Procedure1. Parties.2. Pleadings3. Demand for Abstract.113335II.PARTITIONA. Jurisdiction and PartiesB. Procedure555III. SUIT TO REMOVE CLOUD FROM TITLE OR QUIETING TITLEA. History, Purpose and JurisdictionB. Evidence in Land SuitsC. Common SourceD. Adverse PossessionE. Prior PossessionF. Damages - Good Faith ImprovementsG. Documentary Evidence77899121313IV. PROPERTY DESCRIPTIONA. Sufficiency of DescriptionB. Priority141416V.ofCallsLITIGATING BOUNDARY DISPUTESA. E.H. Brainard, II, etal. vs. The State of Texas, 12 S.W.3d 6)B. Adverse Possession Hostile claimC. Adverse Possession - Character of UseD. Terrill v. Tuckness, 985 S.W.2d 97 (Tex.App.-San Antonio 1998, n.w.h.)E. Garza v. Maddux, 988 S.W.2d 280 (Tex.App.-Corpus Christi 1999, n.w.h.)F. John G. and Stella Kenedy Memorial Foundation v. Dewhurst, 994 S. W.2d 285(Tex.App.-Austin 1999, n.w.h.)G. Wall v. Carrell, 894 S.W.2d 788 (Tex.App.BTyler 1995, writ denied)H. Mohnke v. Greenwood, 915 S.W.2d 585 (Tex.App. - Hou[14th Dist.] 1996, n.w.h.)I.McAllister v. Samuels, 857 S.W.2d 768 (Tex.App. -Houston [14th] 1993, n.w.h.)(Tex.1999)17171717171919192021VI. EXPERT TESTIMONY - TEXASA. Texas Rules of Evidence1. Rule 702. Testimony by Experts2. Rule 703. Bases of Opinion Testimony by Experts3. Rule 704. Opinion on Ultimate Issue4. Rule 705. Disclosure of Facts or Data Underlying Expert Opinion5. Rule 195.2. Schedule for Designating Experts21212121212122VII. EASEMENTSA. Appurtenant or In Gross:B. Licenses:C. Easement or Fee - DistinctionsD. Maintenance:E. In General - Express Grant:F. Implication:G. WayH. Prescription or Limitations:222223232424252727ofNecessity:
Boundary Law and Landowner DisputesI.J.K.L.M.N.O.P.Q.R.S.T.U.V.W.X.Y.Ancient Lights:Estoppel:Custom:Use of Easement:No Additional Burden:Location:Width:Termination of Easements By Operation of ps and GoresEasement - Abandonment - TitleRoads and Streets - State Highway - AbandonmentRoads and Streets - County - Abandonment:Overburdening and Unreasonable Use:2828292929292929303030333333VIII. MARKETABLE TITLE32IX. NEGLIGENT MISREPRESENTATION33ii
Boundary Law and Landowner DisputesBOUNDARY LAW AND LANDOWNERDISPUTESI.TRESPASS TO TRY TITLEA. History, Purpose And JurisdictionTrespass to try title has long been the method oftrying title to lands, tenements and other real property inthe State of Texas and, and the statutory requirements arecontained in the Texas Property Code §§ 22.001-22.045(Vernon 1984).Specifically, the Texas Property Code carriesforward the prior statutory mandate that trespass to trytitle is the method of determining title to lands, tenementsand other real property. The purpose of the code (andthe predecessor statutes) was to avoid the old Englishcommon law rules of fictitious pleading which involvedactions by fictitious persons under fictitious leases, etc.McGrady v. Clary, 247 S.W. 1099 (Tex. Civ. App. Amarillo 1923, writ dism'd w.o.j.).Until the enactment of § 25.0013 of the TexasGovernment Code by the 70th Legislature in 1987exclusive jurisdiction of trespass to try title suits hadbeen in the district courts. Tex. Const, art. V, § 8. §25.0013 provided that county civil courts at law incounties with a population of two million or more, wouldhave concurrent jurisdiction with the district courts todetermine issues of title to real property. However, the71 st Legislature, by the passage of Act of March 1,1989,ch. 2, § 8.10(c), 1989 Tex. Sess. Law Serv. 140 (Vernon)repealed Tex. Gov't Code Ann. § 25.0013.The present grant of jurisdiction for statutory countycourts to try real property cases is contained in the grantof jurisdiction to the particular courts found in Chapter25 in Tex. Gov't. Code Ann. For example, Harris CountyCivil Courts at Law jurisdiction to try land suits iscontained in Tex. Gov't Code Ann. § 25.1032(c)(Vernons 1988). The present grant of jurisdiction forstatutory county courts at law for El Paso County isfound at § 25.0732. Also, any probate court or courtproperly having probate jurisdiction may hear suitsinvolving title to real property that are incident to anestate. Tex. Prob. Code Ann. § 5 (Vernon 1980); Grahamv. Graham, 733 S.W.2d374(Tex. App.-Amarillo 1987,writ ref d n.r.e.).Venue in a trespass to try title suit, a partition suit ora suit to quiet title is mandatory in the county where theland or any part thereof is situated. Tex. Civ. Prac. &Rem. Code Ann. § 15.011. Thus, if you had a tract thatcrossed county boundary lines venue would be proper ineither county.It is not proper to bring a trespass title suit in theform of a declaratory judgment action so as to entitle theplaintiff to attorney's fees. Kennesaw Life &Acc. Ins. Co.v. Goss, 694 S.W.2d 115 (Tex. App. - Houston [14thDist.] 1985, writ refd n.r.e.).In the Kennesaw Life case the court dealt with theattempted use of the Declaratory Judgment Act to settletitle questions rather than a trespass to try title action. OnSeptember 21, 1979, Kennesaw Life conveyed theproperty in dispute by general warranty deed to theStewarts. The deed was recorded on June 17, 1981. OnApril 7, 1982, the Stewarts conveyed the property to theGoss, who recorded the conveyance on April 16, 1982.On July 15, 1982, Kennesaw Life conveyed the sameproperty to Beatrice Straite, who then conveyed todefendant Wilma Straite on August 11, 1982. WilmaStraite brought a Forcible Entry and Detainer suit againstthe Goss' tenant, at which point the Goss brought suitagainst Straite and Kennesaw Life, claiming superiortitleto the property and seeking a declaration of the rights andliabilities of the parties to the deeds. The doubleconveyance by Kennesaw Life was the result of someerror. Goss sought a declaration that he was the soleowner of the property, a cancellation of the deeds indefendant Straite's chain of title, damages for thedispossession of his tenant by defendant Straite, costsand reasonable attorney's fees. In a trial to the courtwithout a jury the court entered a declaratory judgmentin favor of the Goss, including an award of attorneysfees.The court pointed out that the Uniform DeclaratoryJudgments Act, provides that any person interestedunder a deed may have determined any question ofconstruction or validity arising under the instrument andobtain a declaration of rights, status, or other legalrelations thereunder. The purpose of the Act is toprovide a procedural device whereby litigants can obtaina judicial determination of a controversy. If a justiciablecontroversy exists, the trial court has discretionarypower to enter such a judgment. However, the courtnoted that the Act confers neither new substantive rightsupon the parties nor additional jurisdiction on the courts;it merely provides a procedural device for thedetermination of controversies which are already withinthe court's jurisdiction.An examination of the pleadings revealed that thesuit was brought by Goss to remove a cloud on his titleto the property. The court noted that while the Actspecifically provides a procedural method for theconstruction or validity of deeds by those whose rightsare affected by such instruments, the substantive rights ofthe parties are governed by the Trespass to Try Titlestatutes, Tex.Prop.Code Ann. §§ 22.001-.045 (Vernon1984). The court noted that Kennesaw Life would nothave been a proper defendant under these statutes sincethe defendant must be the person in possession of thepremises or some person claiming title to the premises.Since Kennesaw Life disclaimed all interest in theproperty and was not in possession of the property, Gosswould not have recovered any damages against
Boundary Law and Landowner DisputesKennesaw Life in a Trespass to Try Title action. Recallthat Kennesaw Life conveyed to the Stewarts, who inturn conveyed to Goss. Here Goss sought damagesagainst Kennesaw Life and defendant Straite and wasproperly awarded damages only against defendant Straitesince Goss pled no specific cause of action againstKennesaw Life and Kennesaw Life disclaimed all interestin the property. Attorney's fees, which were generallypled, were assessed only against Kennesaw Life. Thecourt concluded that it did not believe that the legislatureintended the Declaratory Judgments Act to be used inthis manner. The court set aside the award of attorneysfees to Goss against Kennesaw Life.Distinction between TTT and Boundary SuitBefore discussing what must be proved in a trespassto try title suit one distinction needs to be made. Thereare cases which hold that in a dispute which is nothingmore than a boundary dispute the plaintiff need not proveup title in the manner required in a trespass to try titlesuit. Usually the test is stated to be if there were nodispute as to the location of the boundary would therestill be a lawsuit. Stated another way, if there would beno suit or dispute but for the question of boundary, thenthe suit is necessarily a boundary suit. Because theburden of proof in a TTT suit can be a substantial burdenthis distinction can be an important one. Plumb v.Stuessy, 6\1 S.W.2d 667 (Tex. 1981); Van Zandt v.Holmes, 689 S. W.2d259 (Tex.App.-Waco 1985, n.w.h.).In the Plumb case cited on p. 2 of the paper, theTexas Supreme Court goes through a good discussion ofthe distinction between a TTT and a pure boundary suit.Plumb:This case involved a dispute over the correctboundary lines of an access lane owned by the Plumbs.The lane was bordered on the west by a tract owned bythe other party to the suit, Stuessy. The trial courtgranted Stuessy an instructed verdict at the conclusion ofPlumb's evidence and entered a judgment which vestedtitle and possession of the disputed property in Stuessy.The court of civil appeals affirmed.In December 1975 Plumb purchased a 2,887.2 acreranch in Burnet County. Included in this purchase wasTract A containing 1.69 acres and Tract B containing 3.2acres. These tracts were described by metes and boundsin Plumb's deed. Each tract consisted of a 30-foot-widestrip of land that ran roughly north and south forapproximately a mile and one half and provides accessfrom Highway No, 183 to Plumb's ranch. These twotracts were acquired in 1899 and 1900 respectively, byPlumb's predecessor in title, McGuire. The two tracts ofland formed a lane which had been continuously used foraccess purposes by McGuire and all subsequent ownersof the ranch. The lane, which had been identified asMcGuire's Lane was bounded by fences on the east andwest and was wider than thirty feet in some places.Also, there was a jog in the lane where the two! tracts joinand overlap.At the time of Plumb's acquisition, the roadway wasonly a rough, narrow caliche-based road which hadbecome crooked over the years, probably as a result ofmud holes and growing trees. In 1976, Plumb madeextensive improvements to the roadway and lane. Hegraded and straightened the roadbed and paved a ten footroadway. He also bulldozed the brush from the lane.Stuessy immediately protested the destructidn of treesand brush which he said were on his land although theywere east of his fence. Stuessy also commencedconstruction of a new fence which would partiallyobstruct the roadway. As a result of this controversy, atleast two surveys were made of the land in an attempt todetermine the correct boundary lines of McGuire Lane.A compromise was verbally agreed to between Plumband Stuessy, but it was not consummated after Plumb'smortgage holder refused to agree. The mortgage holderrefused because the owner of the property to the east ofthe land was not a party to the agreement. After thenegotiations failed, Plumb filed this suit whereby heasserted title to Tract A and Tract B and also assertedclaim under adverse possession for any other land in thelane between the two fences which was described asTract C.The Supreme Court noted that the crucial question inthe case was what was the nature of Plumb's suit. Thelower courts considered the suit as asserting only astatutory trespass to try title action and applied the settledrules relating to such a formal cause. Those rulesprovide that to recover in trespass to try title, the plaintiffmust recover upon the strength of his own title. He mayrecover by (1) proving a regular chain of conveyancesfrom the sovereign, (2) by proving a superior title out ofa common source, (3) by proving title by limitations, or(4) by proving prior possession, and that the possessionhad not been abandoned.The trial court granted a directed verdict for Stuessyat the close of Plumb's evidence and rendered a judgmentwhich divested Plumb of his title and right to possessionof Tracts A and B, and denied his adverse possessionclaim to Tract C. The court of civil appeals held thatPlumb had failed to establish title either from sovereigntyof the soil, by a common source or by limitations and thatthe issue of prior possession had been waived by Plumb.The Supreme Court concluded that the lower courtsconstrued Plumb's cause of action too narrowly. Plumb'spetition asserted more than a pure trespass tq try titleaction. In addition to the formal trespass to try titleallegations, Plumb alleged that his predecessors acquired
Boundary Law and Landowner Disputestitle to Tracts A and B and that the present fences haveconstituted the easterly and westerly boundaries of theroadway for over fifty years. He further alleged thatStuessy had recently commenced construction of a fenceto the east of the existing fence on the west side of theroadway. Along with other relief, Plumb sought aninjunction to prevent Stuessy from relocating thewesterly fence of the lane.The Supreme Courtconcluded that these pleadings raised more than a puretrespass to try title action.The Court recognized that a boundary disputes maybe tried by a statutory action of trespass to try title, butdoes not have to be.It is clear from the record that this cause was tried asa boundary suit. Plumb's title to Tracts A and B was notdisputed. Although Stuessy alleged only a formal "notguilty" plea, his theory of the case was that the existingwest fence of the lane was not the correct boundary lineand, in fact, encroached on his land. His attorney'sopening statement to the trial court made reference to theneed to locate the boundary line. All witnesses werecross-examined extensively by Stuessy's attorney in aneffort to establish the proper boundary lines.The evidence established that Plumb and hispredecessors had continuously used the McGuire Lanesince the tracts were first acquired by McGuire as accessto his ranch. There was evidence that the McGuire Lanehad been fenced for more than fifty years. A locked gatehad been placed at the south end of the lane by Plumband keys were given by him to his permittees.All the testimony developed by both parties revolvedaround these issues: (1) the correct location of theboundary lines of Tracts A and B; and (2) whether Plumbacquired title to the rest of McGuire Lane by adversepossession.The Supreme Court restated the proper test fordetermining if the case is one of boundary is as follows:If there would have been no case but for the question ofboundary, then the case is necessarily a boundary caseeven though it might involve questions of title. And theSupreme Court concluded that this was indeed aboundary case.Since the case was a boundary dispute, it was notnecessary for Plumb to establish his superior title to theproperty in question in the manner required by a formaltrespass to try title action to avoid losing title to hisproperty.What this case illustrates is that in a pure boundarysuit all that is necessary is to establish title into theparties who have the dispute, such as the respective deedsinto each.However, care must be taken because title issues cancertainly be present. Moreover, in many of the caseswhich recite that the plaintiff in a boundary suit need notprove title as in a trespass to try title suit such proof,some character of such proof was made. Thought shouldbe given to narrowing the issues to boundary only by theuse of requests for admissions if possible.B. Parties And Procedure1. Parties.The only essential requirement of a plaintiff in atrespass to try title action is that the plaintiff be a partyasserting a lawful right of possession to the property.City and County of Dallas Levee Imp. Dist. v. Carroll,263 S.W.2d 307 (Tex. Civ. App. - Dallas 1953, writ ref dn.r.e.). That case was one involving land that had beenincluded in a plan of reclamation by the City and Countyof Dallas - pursuant to the plan the bed of the Trinityriver was diverted about a 1/z mile from where it had beenand certain land was thus reclaimed and filled in. Thedefendant went into possession of a portion of this landand for several years, without objection by the City or theCounty, used it for an automobile repair business. TheCity and County sued seeking a mandatory injunctionforcing Carroll to vacate the premises. In its position,and at trial, the City and County never claimed to owntitle to the reclaimed land, they merely claimedpossession under the plan of reclamation. The courtruled that this claim of possession only was sufficient tomaintain the TTT suit.The only necessary party defendant in a trespass totry title suit is the party in possession. Any other partieswho may have or claim some right or interest and whoare not made parties to the suit are simply not affected bya judgment in the suit. Giddens v. Williams, 265 S.W.2d187 (Tex. Civ. App. - Texarkana 1954, writ ref d n.r.e.).The better practice is, of course, to join all parties whoseinterest you seek to bind by the suit. Tex. R. Civ. P.784-785.Tex. R. Civ. P. 783-809 govern procedure in atrespass to try title suit. These rules provide, amongother things, for the requisites of a petition (783), joinderof a warrantor or landlord (786-787), a plea of "notguilty" and its effect (788-789), abstract of title (791794), appointment of a surveyor (796-797), commonsource of title rule (798), judgment (804), damages (805)and claims for improvements (806-807).2. PleadingsTex. R. Civ. P. 783 sets out the essential elementsthat must be in a petition in trespass to try title. Theseare the following:a.b.c.d.Real names of parties and residences, if known;Description of property;Interest claimed by plaintiff;Plaintiff was in possession and is entitled topossession;
Boundary Law and Landowner Disputese.f.g.Defendant unlawfully entered and dispossessedplaintiff;If rents, profits are claimed facts supportingthem;Prayer for relief.Particular attention must be paid to the description to beplaced in the petition. Rule 783(b) provides that thepremises must be described "with sufficient certainty toidentify the same, so that from such descriptionpossession thereof may be delivered ." The same rulealso provides that the state and county or counties wherethe land is situated must be stated. More about whatconstitutes a sufficient description is contained in the lastsection of this presentation.It is recommended that the formal allegations of theplaintiffs petition as set out in Rule 783 be followed asprecisely as possible. A petition which follows themanner of pleading set out in the rule permits proof ofwhatever title the plaintiff may have, except limitationstitle which must be specifically pleaded. Doria v.Suchowolski, 531 S.W.2d 360 (Tex. Civ. App. - SanAntonio 1975, writ refd n.r.e.).Doria:In the Doria case cited on p. 3 of the paper there isa practical illustration of the benefit of pleading thestatutory TTT action and not trying to get creative. Thissuit involved the north 3 feet of lots 19 and 20 in aparticular subdivision in San Antonio, which wereclaimed to be owned by plaintiff, who owned record titleto two adjoining lots. The plaintiff plead the statutoryTTT but only introduced deeds from the common sourceto himself and his neighbor which were me
Boundary Law and Landowner Disputes TABLE OF CONTENTS I. TRESPASS TO TRY TITLE 1 A. History, Purpose And Jurisdiction 1 B. Parties And Procedure 3 1. Parties. 3 2. Pleadings 3 3. Demand for Abstract. 5 II. PARTITION 5 A. Jurisdiction and Parties 5 B. Procedure 5 III. SUIT TO REMOVE CLOUD FROM TITLE OR QUIETING TITLE 7
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land (i.e. umunani), disputes involving informal and polygamous unions, disputes about land transactions, and boundary disputes. Disputes over inheritance and gifts of land seemed to be the most common. These disputes were typically between parents and siblings, and between siblings upon the death of their parents.
ON BOUNDARY DISPUTES 1. LAND SURVEYORS ARE MORE LIKELY TO START A BOUNDARY DISPUTE AS TO RESOLVE ONE. JEFF’S 10 COMMANDMENTS ON BOUNDARY DISPUTES “This surveyor's mark was likely the spark that ignited this dispute. When the marker was placed near the Cothams' fence, the Cothamschallenged the finding
the boundary). The boundary layer theory was invented by Prandtl back in 1904 (when the rst bound-ary layer equation was ever found). Prandtl assumes that the velocity in the boundary layer depends on t, xand on a rescaled variable Z z where is the size of the boundary layer. We therefore make the following Ansatz, within the boundary layer,
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construction industry disputes, and the causes of those disputes, is essential. It can be concluded that construction disputes are a cause of concern in every construction project and the solution to this problem is to avoid and cautiously manage them for smooth running of construction process. Keywords: Claim, Dispute, Disagreement, contract 1.
Disputes have arisen mainly over land acquisition processes, use of common resources and impact of company operations on livelihoods and the environment. Disputes have also arisen between companies over concessions. Given the prevalence of land‐related disputes, the poor state of access to formal justice
32.33 standards, ANSI A300:Performance parameters established by industry consensus as a rule for the measure of quantity, weight, extent, value, or quality. 32.34 supplemental support system: Asystem designed to provide additional support or limit movement of a tree or tree part. 32.35 swage:A crimp-type holding device for wire rope. 32.36 swage stop: Adevice used to seal the end of cable. 32 .
